Clemency for Ineffective Assistance?

A condemned Ohio inmate who weighs 450 pounds should be spared based on claims raising doubts
about his legal representation, not because he says he's so fat he can't be humanely executed, the
Ohio Parole Board ruled today.

The board rejected arguments made by attorneys for Ronald Post that he deserves mercy because
of lingering doubts about his "legal and moral guilt" in a woman's death, but it said it couldn't
ignore perceived missteps by lawyers in his case.

The board's recommendation, by a vote of 5-3, goes to Gov. John Kasich, who has the final
say. Post is scheduled to die Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.

In my view, ineffective assistance as such should not be considered on executive clemency. The courts have already considered that on collateral review of the judgment. Clemency should be granted if (1) there remains a genuine doubt of guilt of the offense, considering all available evidence regardless of its admissibility at trial, or (2) the case is a clearly mitigated case, well below what warrants a death sentence, again considering all available evidence of aggravating and mitigating circumstances, regardless of legal admissibility.

Clemency decisions should go straight to the substance, without regard to the procedure. In that way, clemency is complementary to appeal and habeas corpus, where a judgment may be overturned on procedural grounds even though correct in substance, and conversely a defendant's claim may be rejected on procedural grounds without considering the substance.

Update 2 (12/17): Gov. Kasich didn't see it my way. Aaron Marshall has this story in the Cleveland Plain Dealer.

Note: In some versions of the story, such as this one
at WJLA, the headline writer gets the obesity angle completely
backwards. Headlines are written by editors, not the reporter whose
byline appears on the story, and we have noted the poor quality of headline writing a few times here.